Our Women’s Month judgment this week comes from Kenya’s Judge William Musyoka. What makes his decision stand out is that he has found and highlighted an anomaly in the law dealing with rape, a particularly traumatic crime that is all too prevalent. He explained that the same set of facts could be considered under either of two provisions, but one could attract a much lighter sentence than the other. He said he did not understand why there should be two provisions and why, as in this case, the state would choose to charge the accused under the section that would result in a lesser sentence. It is a welcome and important step when judgments pay such close attention to the laws that affect so many – most of them women and children; when they point out anomalies that see perpetrators walking away with ‘a slap on the wrist’, as Judge Musyoka put it. His judgment is a challenge to the legislature to reconsider the law and close the escape route that could see a rapist spending very little time in prison despite the horrendous nature of the crime.

The facts of the case are depressingly familiar: a nine-year-old girl is raped by her uncle. He pleads not guilty and after a full trial before an acting senior resident magistrate, he is convicted and sentenced.

The uncle, facing a 10-year term in prison, appeals to the high court where Judge William Musyoka considers the challenges to conviction and sentence.

Anomaly

Retracing evidence from the trial in this case the judge found the accused had not persuaded him to set aside either conviction or sentence. Having dismissed the appeal, Judge Musyoka pointed out a strange anomaly in Kenya’s Sexual Offences Act (SOA) that I have not seen commented on before by a presiding officer.

The uncle in the case was initially charged with ‘defilement’ – rape of a child – under section 8 of the SOA. However, ‘somewhere along the way’, this was changed to a charge under another section that deals with incest.

Section 8 says that someone who commits defilement with a child 11 years or younger, ‘shall, upon conviction, be sentenced to imprisonment for life’.

Section 20 that deals with ‘incest by a male person’, says that a man who commits incest is liable to imprisonment ‘for a term of not less than 10 years’.

Child

The child in this case was nine years old when she was raped. Under section 8 (1) (2) this would attract a mandatory life sentence. The offence of incest, created by section 20, however, provides for a minimum 10 years. The judge said this seemed to indicate that incest under section 20 was somehow less serious than the crime of defilement under section 8. Even when the facts of the rape might be exactly the same.

Here, the facts clearly ‘disclosed defilement’ and the state ‘could and had properly charged (the uncle) with defilement of a minor of nine years.’ So what caused the ‘proper and more serious charge’ to be substituted with ‘the fairly minor charge’ under section 20, during the trial?

Perhaps, suggests the judge, this step was taken to save the uncle from the mandatory penalty of life imprisonment as stipulated in section 8.

Mistake

But the court below had made a mistake in convicting him under section 20 and sentencing him to 10 years. This is because section 20 had a proviso that the lower court seemed to have missed. The minimum penalty is indeed 10 years for incest. But this sentencing provision applies only if the person against whom incest is committed is an adult.

Where it is committed against someone under 18, ‘the accused person shall be liable to imprisonment for life’.

The judge said there was a distinction between the two sections. Charged with defilement of a child aged 11 or younger, the required sentence under section 8 would be life in prison. So the charges in this case, originally brought under this section, would have sent the uncle to jail for life.

But the lower court had found the crime committed amounted to incest under section 20 and had imposed the 10-year sentence appropriate in the case of adults. In doing so it seemed to ignore the proviso to section 20 giving the court a discretion to consider a penalty of up to life imprisonment.

Minor

‘I do not understand why there should be that distinction or discrimination,’ said Judge Musyoka. ‘To me defilement of a minor of nine remains defilement whether charged under section 20 … or not. The penalty for it should be that prescribed in section 8 (2).

‘The trial court ought to have taken these matters into account in sentencing (the uncle).’ The fact that the court did not consider the proviso enabled the uncle ‘to get away with murder as it were. (He) walked away with a slap on his wrist for defilement of a minor’.

The judge therefore dismissed the appeal and found the sentence did not accord with the law. ‘I shall set it aside and substitute it with that imposed by section 8 (2) of the SOA for minor victims’, namely life imprisonment.

Puzzled

Judge Musyoka is surely correct to be puzzled as to why there should be the distinction in the law between ‘defilement of a minor’ and ‘incest’ or ‘incest with a minor’. And he is also correct to be disturbed by the change made in this case, with no reason given by the lower court, to the charge under which the uncle was prosecuted.

While the uncle has now been given what the court believes to be the appropriate sentence, this case challenges civil society to take a closer look at the disparity in the law dealing with the rape of children, the reasons for this disparity, and the way it has been used. It seems like an appropriate issue for Kenya’s women lawyers. What a valuable contribution if would be if they took this up and pressed parliament to re-think the distinction, particularly since the present situation can lead to such an injustice for the child involved.